The Morgentaler Decision

A 25th Anniversary Celebration

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The CLC celebrates the 25th Anniversary of the Morgentaler Decision

Canadian Labour Congress, January 25, 2013

January 28, 2013 marks the 25th Anniversary of Canada’s Supreme Court decision to overturn Canada’s abortion law – a decision that allowed women the freedom to choose this procedure legally and safely. The Canadian Labour Congress (CLC) sees this day as a historic moment for women’s equality across the country. The labour movement has long been a part the fight for a woman’s right to access safe, legal abortion, and unions are committed to protecting women’s reproductive freedom from any attempts to reduce or limit access.

“Abortion rights are a fundamental part of women’s equality,” said Barbara Byers, CLC Executive Vice-President. “But we can never take these gains for granted. Unfortunately there are members of the Harper government who seek to question and erode the progress that women have made. Now, more than ever, we need to acknowledge and remember how important the Morgentaler Decision was for women in Canada, and commit to defending our right to control the decisions we make about our bodies and our lives.”

Please visit the Abortion Rights Coalition of Canada’s (ARCC) newly created website that celebrates the victory and the work of Dr. Henry Morgentaler and all he contributed to the pro-choice movement. The website also lists events and ways you can get involved in the ongoing struggle for reproductive justice.

Statement of Support from the U.N.

Anand Grover

Anand Grover

Statement of Support from:

Anand Grover, United Nations Special Rapporteur on Right to Health

Mumbai, India, January 23, 2013

I congratulate Canada on completing 25 years since R v. Morgentaler, when it successfully moved away from a criminal regime limiting abortions to a barrier-free environment in which women are able to enjoy their right to sexual and reproductive health.

States are required to respect the right to health of women by not interfering with their right to autonomy and right to privacy and dignity all of which are critical to the right to sexual and reproductive health. The right to health also mandates States to ensure that quality health facilities, goods and services are available and accessible to all, without discrimination. This requires the removal of economic, physical and legal barriers to healthcare services, including for abortion. Criminalization is an impediment to the successful realization of the right to health of women and exposes them to the risks associated with unsafe and illegal abortions.

In decriminalizing abortion, R v. Morgentaler upheld these principles as crucial to women’s reproductive freedom and autonomy. It recognised the fundamental right of a women to make decisions concerning her own body, ushering in an era of equality, dignity and freedom for women in Canada.

It is reassuring that the movement for greater sexual and reproductive autonomy for women has sustained successfully in Canada for all these years and I wish it bigger success in the future.

April 1985: “One Man’s 16-Year Crusade”

April 7, 1985 • Vancouver Province

One Man’s 16-Year Crusade

Dr. Henry Morgentaler arrives in Vancouver this week to speak at UBC Friday night. Sunday he speaks to the Victoria Canadian Abortion Rights Activist League to raise funds for his legal defence. While he says no abortion clinics are planned for B.C., anti-abortion groups fear Morgentaler is eyeing Nanaimo and Victoria. Today The Province looks at the man whose fight for abortions is a crusade.

Staff Writer

The evocative countenance of Dr. Henry Morgentaler leaves few people cold. Some see the devil incarnate, others see a golden aura radiating from behind the man’s head. But nearly everyone has an opinion.

Juries seem to like him; prosecutors and attorneys general are another matter.

A small minority of Canadians might look at a photo, shrug and wonder where they’ve seen him before.

He has crusaded for more liberal abortion laws since 1969 when Parliament legalized the operation — but only for certain cases in certain hospitals.

As the women’s movement grew in the 1970s, Morgentaler’s cause was as much a symbol of their new-found strength as it was a tool to explore Canada’s sometimes sexist legal institutions.

Morgentaler is a survivor of the Nazi concentration camps of Dachau and Auschwitz. He has been named Humanist of the Year. He has been called a murderer.

Now, he is waging a war in the courts of Ontario and Manitoba that is all too similar to the seven-year battle of Quebec he fought a decade earlier.

That fight earned him an 18-month jail term. He served 10 months, suffering a heart attack shortly after going to jail.

But he did change the legal establishment’s outlook on abortion and jury verdicts.

Now he strides into battle for the same cause in Ontario and Manitoba, casting an eye to the Maritimes, and his admirers are forming columns behind him.

His followers see his involvement in the cause of freer abortion as saintly.

“He’s a passionate, affectionate and alive humanist,” says Marva Blackmore of the Concerned Citizens for Choice on Abortion, sponsors of a Morgentaler rally at UBC Friday.

“He only began performing abortions because he saw desperate women coming to him, asking for help. He couldn’t refuse them,” said Blackmore.

Opening abortion clinics in 1983 has invited new prosecution and many costly police raids.

Morgentaler is protected from nagging outsiders who would sap the 62-year-old’s strength.

“He has cut down on his work in the clinics,” says publicist Selma Eddlestone. “It’s a struggle. He’s in the clinic just two days a week now, and out trying to mobilize support three or four other days.

“To him, it seems to be a struggle against insensitivity and injustice.”

Morgentaler has made it clear he does not relish the idea of going to jail. He sometimes fears he will be murdered. But he is a willing martyr, a rare breed in these times.


Morgentaler’s Trials and Tribulations

Distressed civil rights activists thought he had won his legal battle nine years ago

Dr. Henry Morgentaler’s present battle with the courts in Ontario and Manitoba has distressed civil rights activists.

They thought the abortion crusader had won his battle nine years ago.

“I find it depressing that this man continues to be persecuted,” Alister Browne, medical ethics spokesman for the B.C. Civil Liberties Association, told the Province, “But it stems from the fact that there is no political will to change the law.”

“It’s far too controversial and legislators will continue to avoid the issue,” Browne added.”

As long as the Criminal Code stipulates that abortion is illegal unless the patient is approved by a hospital abortion committee and the operation is conducted in an accredited hospital, prosecutors will always have grounds to lay charges, says a professor of legal ethics at the University of B.C.

Morgentaler’s trials and tribulations are simply “politics couched as law,” says the professor, who asked not to be named. “It’s just too much political dynamite,” he added.

This was borne out in the last federal election when the nationally organized “pro-life” group Campaign Life, using sophisticated polling and advertising campaigns, set up a list of politicians it would seek to have defeated. Iona Campagnolo, defeated in North Vancouver-Burnaby, John Turner, successful in Vancouver Quadra, and Burnaby MP Svend Robinson, who was re-elected, were targets.

Campaign Life is a symbol of the new conservatism.

Ten years ago when Morgentaler faced the courts in Quebec, he found backing from legions of pro-choice supporters.

On Friday, when he steps up to the podium to speak at UBC he is likely to be met by a crowd with a different point of view. Now hostile demonstrators meet him at every turn.

They are Canadians who say abortion is tantamount to murder and that life begins at conception. Even if their numbers are not growing, they are certainly becoming more effective at getting their views known.

And Morgentaler is before the courts again, charged with committing a crime by performing therapeutic abortions.

Ten years ago, he was in a Quebec prison. His province’s Court of Appeal had taken the controversial measure of reversing his acquittal by a jury on charges of performing an illegal abortion.

What astounded constitutional experts at the time was that Mr. Justice James Hugesson imposed an 18-month sentence on the doctor without ordering a new trial.

When Quebec’s attorney general realized he couldn’t get a jury to convict Morgentaler after three acquittals on the same charge, he left him alone but financially ruined after the seven-year battle.

Political columnists pointed to the Quebec election campaign and suggested the Liberals needed the publicity to win a mandate in the predominantly Roman Catholic province.

Today there are eight of his clinics in operation with the Quebec government’s blessing.

In his defence of Morgentaler on the same charge in Ontario court last November, lawyer Morris Manning raged at Associate Chief Justice William Parker’s “failure to remain impartial.”

Manning’s summation urged jurors to “send a message to the government” if they thought the abortion law was unfair.

Parker then took 3½ hours to explain to the jurors they were not legislators. Three Quebec judges wasted their breath trying to get the same point across a decade earlier.

The jury last November found Morgentaler not guilty. But then-attorney general Roy McMurtry appealed the acquittal and police raided the clinic within weeks of Morgentaler’s court victory, charging him with the same count of conspiracy to procure a miscarriage but on new evidence.

Canadian courts employ the adversary system — two opposing forces arguing a point of law before a judge.

But Morgentaler supporters wonder what happens to justice when one of the two adversaries is the highest public servant in the system charged with holding justice sacred.

They say that defying the jury’s verdict in a particular case and sending a police force on raids and prosecutors on a mission to find a certain judgment in a case damages the integrity of the system.

January 1975: “Abortion Law ‘a Farce'”

January 1975 • Vancouver Sun

Abortion Law “a Farce”

Lawyer details twists and turns


Montreal criminal lawyer Claude-Armand Sheppard has spent five years before the courts arguing every aspect of abortion law. In that time he has come to the conclusion that the law on abortion is “a farce.”

“Parliament has recognized that abortions are needed. Then it makes them impossible to get in many regions,” he said in an interview.

“And the law subjects doctors to life imprisonment for making them possible.”

And even worse than the law is the attitude of Justice Minister Otto Lang, said Sheppard.

Since 1970, Sheppard has been the lawyer for Dr. Henry Morgentaler, a Montreal physician who has openly admitted to performing thousands of abortions since 1968.

Morgentaler was acquitted on an abortion charge by a Quebec jury in 1973. The Quebec Court of Appeal subsequently overturned the decision, and substituted a verdict of guilty. The case was appealed before the Supreme Court of Canada. A decision has not yet been handed down.

Sheppard said he hopes the decision will result in liberalized interpretation of the abortion law, if not a complete change.

“One of the main issues in the appeal before the Supreme Court is whether the Court of Appeal can substitute its own decision for that of a jury, and convict a man who the jury has acquitted,” said Sheppard.

“While jury decisions are quashed all the time, this was the first time in Canadian legal history that the Appeal Court usurped the jury’s function. Usually, a new trial is ordered when a jury verdict is quashed.”

In the past five years before the courts, said Sheppard, almost every aspect of criminal procedure and fundamental principles of criminal law were argued.

“I think it’s going to be the text book case in Canadian law. Any law student who reads the record will have a complete course in Canadian law.

‘We literally argued the issues of life and death; the right to terminate pregnancy; when does life begin; even what is the duty of a doctor to his patient; whether a doctor has the right to impose his views on a patient; whether he has the right to refuse what a patient demands.

“We argued that the doctor hasn’t the right to impose his views on a patient, but is obliged to help her live the way she wants to live.

“We argued at length about what constitutes health — postulating that social and economic factors must be taken into consideration because health is not merely physical integrity or the absence of mental illness.”

The cost of all that verbiage is somewhere around $150,000; $50,000 in out-of-pocket expenses for witness fees, documents, transcripts, court reporters, and appeal books.

“Legal fees, over the last five years, are approximately $100,100. But it hasn’t all been paid yet. And it won’t be the only case in which we have to wait years to be paid.

“It isn’t difficult for a law firm to be a bit of a Robin Hood. We can survive on the rich cases.”

The reason the case was so costly, Sheppard pointed out, was that Morgentaler instructed that it be fought like a text book case.

“He wanted it to result in a change in the law. Otherwise, it could have been a lot easier — he could have made a lot of “deals.”

Sheppard, a member of the federal advisory council on the Status of Women, criticized Justice Minister Otto Lang’s “interference” with the interpretation of Canadian abortion legislation.

Lang is apparently unable to accept a reasonable definition of what constitutes health, he said.

“Judging from statements Lang has made publicly, he has a Victorian concept of health: You’re ill if you’re insane or if you have cancer.

“But if you’re depressed or unable to cope with the circumstances of life, that doesn’t count.

“According to Lang, if a young girl is raped, and pregnancy results, and there’s nothing physically wrong with her, she isn’t entitled to an abortion.

“But if you can prove that the girl is going to suffer some terrible physical disease, or go crackers, she’s entitled to an abortion. If carrying the pregnancy to full term is merely going to destroy her life, that isn’t sufficient reason to abort.”

Sheppard said he believes Lang is “totally insensitive to the real needs of women.”

“He just doesn’t know what it’s all about. I think that, deep down, he is very uneasy about the demands of women for independence.

“His insensitivity shows in the man’s patronizing, colonial attitude. It’s hard to label him, but when I see him I think of an insensitive mandarin, more at home with grain elevators than with women.”

(Justice Minister Lang is also responsible for the Canadian Wheat Board.)

Sheppard said he cannot recall any cabinet minister in Canadian history who has managed to antagonize such an important segment of the population.

If Lang were at all sensitive to the needs of people, he would have a more balanced view of the abortion issue, said Sheppard.

“Lang criticizes hospitals that in his view are too lenient with abortions, but he has not said a word about hospitals that are too insensitive to the needs of women to offer abortions.

“If he were not biased, he would have a balanced view — that some hospitals go overboard and others do nothing to help women.”

But Sheppard believes the weight of public opinion can bring changes in a democracy.

“Canada now has the most backward abortion law in the Western world, with the exceptions of Italy, Spain and Portugal.

“We want the law changed, to permit women to have legal and medically safe abortions.

“But while Lang fiddles over this burning issue, thousands of women are subjected to the anguish of an unwanted pregnancy.

“With Lang in office, we are nowhere near the question of medically safe abortions. I wish that adequate medical attention were the issue in Canada.

“The current problem is that no legal abortion facilities are available to many Canadian women — so we force them into illegal procedures.”

May 1967: “How the Hospitals Broke the Great Abortion Silence”

May 6, 1967 • SW Magazine

How the Hospitals Broke the Great Abortion Silence

Ten strong reasons why the abortion ban has been ignored can be found in these ten cases culled from hospitals across our country

by WALTER STEWART, SW Magazine staff writer

For years, Canadian doctors have been stretching the law that makes therapeutic abortions illegal; last week some of them set out to smash it, and it appears they have won: The law will be changed.

The Canadian Criminal Code contains two sections dealing with abortions; Section 209 makes it illegal to kill an unborn child except to save the mother’s life – which may be interpreted as saving the mother from becoming a mental or physical wreck; Sections 207-8, however, state flatly that it is a crime to cause an abortion for any reason, and set out penalties of life imprisonment for the abortionist and two years in jail for the woman who is aborted.

In the shadow of this contradiction, Canadian hospitals (except Roman Catholic hospitals, where taking the life of a foetus for any reason is regarded as murder) have applied the more lenient section and ignored the outright prohibition. This practice has been well known, but never advertised, because, if the law were strictly applied, a doctor performing no more than his duty could wind up in prison. The break came after a staff meeting at Women’s College Hospital in Toronto on Monday, April 10. Dr. Walter Hannah, chief of obstetrics (and, incidentally, Prime Minister Pearson’s son-in-law), told his colleagues the hospital had authorized 12 therapeutic abortions last year, about the same number as every year of the past eight. The figures were to be reported to the hospital’s board of governors the next day.

So they were, but, in the meantime, someone at the meeting had tipped off the newspapers. “We don’t know how the story got out,” said Dr. Margaret Hill, chief of Women’s College medical staff, “but it certainly has worked out well.”

Within hours, five other Toronto hospitals had joined Women’s College in print, with a list of 38 more abortions performed last year (The Toronto total now reads: Women’s College, 12; Wellesley, 12; Toronto Western, 11; Toronto East General, 7; Doctors’ Hospital, 4, and Humber Memorial, 4. (Toronto General has no 1966 figure, but reported 27 cases for 1965).

In the Ontario legislature, Attorney General Arthur Wishart quickly lined up with the doctors, and Health Minister Dr. Matthew Dymond gave the back of his hand to the Criminal Code prohibition with a statement that “therapeutic abortions are performed and are recognized by every good doctor.”

Before Dr. Hannah could even report to the Board of Governors, the issue had been decided. In Ottawa, his father-in-law rose Tuesday afternoon to tell the House of Commons that legislation to clarify the law on abortions will be introduced at “as early a date as possible.” The change, which will probably make it clear that pregnancy may be terminated when the life or sanity of the mother is, threatened, could be made by the end of June.

Also in Ottawa, a tall, brunette housewife and mother of two, who heads the Association for the Modernization of Canadian Abortion Laws, expressed her delight. “Things are really beginning to roll,” Mrs. Sylvio Perron, 30, told SW Magazine. “Nothing can stop us now.”

Across the nation, most doctors heaved a sigh of relief. “We’ve been on tricky legal grounds,” explained a Vancouver doctor, while a Halifax surgeon added, “We do therapeutic abortions but it’s probably unlawful, although it has been accepted over the years.” One dissenter was a Montreal obstetrician, who thinks “It is better going on with the tolerance within the law as it is now than to change the law.” In his view, “The performance of a therapeutic abortion is repugnant to any obstetrician. His whole career is to preserve life, not destroy it.”

Because of the need for secrecy, the hospitals have never consulted each other about what constitutes proper grounds, and geography may play as great a role as compassion in determining a woman’s chances for an operation.

In the Montreal hospital consulted by SW Magazine, a woman who has contracted German measles during pregnancy (which may cause deformity of the child) would not be considered a candidate for abortion, but she would in Toronto or Halifax. The pregnant victim of rape may well be granted an operation in Winnipeg, but not in Montreal. In Vancouver, the supreme test is whether the life of the mother is in danger, but a Halifax hospital reported this has never been the issue in an abortion performed there. Other grounds, such as the mental health of the mother, have been the issue in Halifax. Psychiatric grounds were given for more than half the cases in two hospitals in Toronto and Winnipeg, but are seldom a factor in an Edmonton institution, and never in a Montreal hospital.

Psychiatric grounds often include a threat by the mother to take her own or the baby’s life, and constitute the single most frequent reason for granting abortions in SW’s spot check. Dr. Lois Plumb, chief of the department of psychiatry at Women’s College Hospital in Toronto, explained, “When a woman tells her doctor she is going to destroy herself, she is in real trouble. The pregnancy may be the stress that brings her disturbance to a head, but it is almost never the whole story. These people need help.”

However, the hospital’s screening is strict. Once a woman who threatened suicide was turned down because a psychiatric examination showed she was too stable to go through with her threat. Her bluff was called, and mother and child are doing well.

The contradictory rules applied in various hospitals make it clear open discussion is necessary, and for this, the law must be clarified. If nothing else, the threat to conscientious doctors must be removed by scrapping the unenforced section of the Criminal Code that bans abortions entirely. Ten strong reasons why this ban has been ignored can be found in ten cases culled by SW Magazine from hospitals across the land:

  • Arlene was planning to get married when she became pregnant. She was no careless youngster, but a 38-year-old mother of two teen-age daughters. Her husband had deserted her after five years of marriage and her life had been devoted to bringing up her girls, but when they entered high school, she went back to work, met a man, and became engaged. When she told him she was pregnant, however, the engagement ended abruptly. Arlene later learned the man had a history of mental illness, as well as three former wives. He left Arlene guilty and alone, unable to face her daughters, society or herself. With consummate care, she set out to commit suicide; she read a number of books on nutrition, then went on a diet that avoided every essential food. Her family doctor intervened and was able to have her aborted.
  • Joanne, 30, a quiet, pretty housewife, was the victim of a severe spinal disease which required corrective surgery. While she was still convalescing, she became pregnant, and her doctors felt the strain of childbirth would collapse her spine, resulting in death or permanent paralysis. They had no hesitation in terminating pregnancy.
  • The case was not so simple with Lenore, a 35-year-old married mother of two. Lenore had been a psychiatric patient, and when she told her doctor she would take her own life rather than bear another baby, he believed her. The hospital committee did not, however, and an abortion was refused. Lenore took an overdose of sleeping pills and nearly died; then the hospital believed her, granted the operation.
  • Therese was a victim of rape – or was she? The rather plain, slight, unmarried 20-year-old was certainly pregnant, but the man she accused of attacking her was her boyfriend, and she wouldn’t press charges. Her doctor explained, “When a girl is knocked over the head and dragged into the bushes, the course is clear; if the pregnancy is likely to cause permanent mental damage, it should be ended. But rape is seldom that straightforward; where do you draw the line between permission to go so far end the sudden withdrawal of permission to go further? In other words, what is rape? In this case, there was another complication – Therese had a history of mental illness, and the hospital decided in her favor.
  • “If I have to have a baby,” said Monica, “I will throw him down the cellar stairs.” The 24-year-old, toughly handsome woman was serious; her hostility to children bordered on the psychotic. She had been raised with a younger brother who seemed to get all his parents’ love, and had gradually withdrawn into herself. When her husband’s nephew came to visit, Monica had, in fact, hurled him down the cellar stairs. An operation was granted.
  • Darlene had four small children and didn’t want any more, so she went on birth-control pills. They made her ill, however, and her doctor cut the dosage. Darlene became pregnant again, went into depression, refused to eat, then became ill with a vaginal infection, in hospital, she tried to persuade her doctor she should have an abortion, but he told her she was merely suffering from “housewife-itis”. She began to talk of suicide, and her worried husband called in a psychiatrist, who recommended an abortion. When the hospital wouldn’t agree, she was moved to another hospital, which did.
  • Patricia, a teenage bride, contracted German measles during the first month of her pregnancy. She knew there was a chance her child would be born deformed, and this worry preyed on her mind so severely that a hospital committee decided the danger to her mental stability, as well as the possibility of an irregular birth, justified abortion.
  • “I can’t be pregnant,” Mary told her startled doctor, “I won’t be pretty any more.” Psychiatric examination revealed she had never grown up. As a child, she competed with an elder sister for her mother’s attention, since their father had deserted the family shortly after Mary’s birth. She took on her mother’s bitter views of man and sex and, even after marriage, worried secretly that her mother disapproved of her sleeping with her husband. Pregnancy was too much, a badge of sexuality, a betrayal of her mother. Mary’s slender mental resources began to crumble; she became obsessed with the notion that pregnancy would destroy her. Therapy failed, her depression became acute, so an operation was approved.
  • A week after she left hospital with her new-born baby boy, Louise returned him to the Admittance desk where she explained, “If I have to keep him, I know I’ll hurt him.” Post partum depression is common, but in this case it was part of a history of mental instability stretching back to a cold and loveless childhood. With her husband’s approval, the baby was put out for adoption, and when Louise became pregnant again, doctors heeded the warning, and permitted an abortion
  • Carol, at 35, had already borne five children. With each baby, life seemed to be closing in more and more; she felt ugly and used up; her husband, she was sure, no longer loved her as he had the svelte young woman he married. When she became pregnant a sixth time she stopped eating, stopped caring for her family, retreated into a dark, enclosing shall. Psychiatric treatment failed to restore her self-esteem and reluctantly her pregnancy was terminated. “In a case like this,” a doctor explained, “an abortion is our admission of failure; it shows we couldn’t do anything for her. But what should we do, let her be destroyed?”
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